228. THOMAS JAMES proceedingsdefend was indicted, for that, on the 1st of December last, before William Earl < no role > of Mansfield, one of the Justices assigned to hold pleas at Guildhall , in the city of London, a certain issue was joined between Richard George < no role > , plaintiff, and William Wells < no role > , defendant, in a certain action of trespass, on the case that was tried before a jury of the said city of London; and that the said Thomas James < no role > did then and there appear, and was produced for a witness, and was duly sworn, and did take his corporal oath on the holy gospel of God, that his evidence should be the truth, the whole truth, and nothing but the truth; he the said William Earl < no role > of Mansfield then and there having competent authority to administer the same oath; And it then and there became a material question, whether the plaintiff was ever insolvent, or ever made any composition with his creditors, or whether the said creditors had been paid their full debts: And that the said Thomas James < no role > , not having the fear of God before his eyes, &c. knowingly, falsly, wickedly, maliciously, and corruptly, by his own act and consent, did depose and give in evidence, in substance and to the effect following: that is to say, That Richard George < no role > the plaintiff; meaning the plaintiff in the said issue, was never insolvent, and had never made any composition to his creditors, and that no assignment of his effects ever was made, and that the creditors had been paid their full money of 20 s. in the pound by Mr. Dublois, whereas in truth and effect the said Richard George < no role > the plaintiff had been insolvent, and had made a composition with his creditors, and an assignment of his effects had been made, and the said creditors had never been paid their full money of 20 s. in the pound, but whereas in truth and in fact the said creditors of the said Richard George < no role > were paid after the rate of 8 s. in the pound, as a composition, and the said creditors accepted the same accordingly; and the said Thomas James < no role > well knew the same to be true; and so the jurors aforesaid upon their oaths say, that the said Thomas James < no role > , by his own proper act and consent, &c. did commit wilful and corrupt perjury .

Court. How is the perjury assigned with respect to 20 s. in the pound? -

"The creditors of the said Richard George < no role > never paid their full money 20 s. in the pound."

Court. It does not add by Mr. Dublois.

Mr. Sylvester, of Council for the prosecution, thus opened the case.

May it please your Lordship, and you Gentlemen of the Jury, this is an indictment against the defendant Thomas James < no role > , for wilful and corrupt perjury. The prisoner at the bar who now appears before you to answer this charge, is an attorney belonging to the Court of King's Bench , and the indictment charges that an action came to be tried before Lord Mansfield, in which Richard George < no role > was plaintiff, and William Wells < no role > defendant: it was an action brought to recover the sum of sixteen pounds, due from Wells to George; before this action there had been many transactions between these two gentlemen, and the sum at one time was forty-nine pounds, due from Wells to George, part of that money having been paid, and about sixteen pounds odd remaining unpaid; George applied to Wells to beg the favour that he might have some money, he desired the sum of twenty pounds; Wells gave him his note at a short date, not having cash by him; this note by some means or other got out of the hands of George; he told Mr. Wells, says he, I have been defrauded of that note, and I desire you to stop the payment, I have been swindled out of it by a man of the name of Sharp, and I will give you an indemnity. Sometime after this, this note was put in suit against Wells by Sharp, but it was nonprossed, and he gave him another note, and it was agreed that the balance of sixteen pounds ten shillings should remain in his hands as a counter-security; Mr. George, however, by the advice of I do not know who, whether by the advice of Mr. James, or somebody else, thought proper to bring an action against Mr. Wells for this very sixteen pounds odd; when that cause came to be tried, says Wells, I am not indebted to you in that money, my note is outstanding; that in point of law was looked upon to be no defence; then the question was, whether this had not been agreed by the parties to remain as a security, and, that it was the meaning of the parties was certain, because George having become insolvent, he had omitted this sixteen pounds in the account of his debts, because he knew it was to remain as an indemnity for the note which Wells had given. When the cause came on to be tried, they first produced the evidence of the debt, and Mr. James < no role > the attorney, wishing to get a verdict for his client; was examined as a witness for his client; he was asked, Was the plaintiff George ever insolvent, did not he make a composition with his creditors, was there any assignment of his effects? all which he denied; and said the creditors had been paid the sum of twenty shillings in the pound: upon which Lord Mansfield said you see every fact that has been suggested is denied by Mr. James; upon which a verdict was immediately found for the plaintiff in this business.

Gentlemen, this is a justice due to the country for you to try and determine on the offence of Mr. James. I need not tell you that the crime of perjury is a very foul and horrid crime, and deserves the most exemplary punishment. If the facts are not proved clearly, I am sure you will rejoice with me, that Mr. James should be acquitted. I am sure I only wish, and the prosecutors only wish to have the matter come fairly before you; if the witnesses prove the fact charged against the defendant, you are bound to find him guilty, and he must abide by the consequences; one thing is admitted by the learned Council who conducts his defence, the record of the proceedings is not here, but it is admitted that there was such a cause, and that the cause was tried before Lord Mansfield. Gentlemen, I shall call the witnesses, and prove the facts, without taking up any more of your time.

The Witnesses examined apart by desire of Mr. Fielding, Council for the Defendant:

JANE WELLS < no role > sworn.

(Examined by Mr. Sylvester.)

Was you Madam at the sittings after last term in the Court of King's Bench? - Yes.

Do you remember a cause between George and Wells? - Yes, I was present and heard the Counsellor ask Mr. James, I believe, whether he was an insolvent man.

Whether who was? - Mr. George; and whether he had not made a composition with his creditors, and Mr. James said no, he was not, but had paid every body twenty shillings in the pound, or at least Mr. Dublois had paid it for him; the Council then asked Mr. James how he knew that, and he said he had been concerned in the business all through.

Mr. Fielding. Old Lady, you seem to have a pretty accurate memory as to what the Council said to Mr. James, do you remember the manner in which my Lord Mansfield treated the cause? - I cannot say I do.

You do not remember that? - No.

You do not remember my Lord Mansfield's saying, pho! pho! there is no defence at all? - No.

Was not my Lord Mansfield of opinion that there was not a shadow of defence? - I do not remember.

Do you remember that it was not at all necessary for Mr. James to go half through the evidences? - I know we were not called any of us.

And the verdict went against you? - Yes.

Now you affect to recollect very well the question of the Council and the answer of Mr. James? - That is all I remember.

How often now have you rehearsed this question and answer? - Not very often, because I have something else to do than to think about it.

Where was it first talked over? - Sometimes I forget things, and sometimes I can remember them.

Court. Was Mr. James produced and sworn as a witness? - Yes, Sir, they asked him if he was a lawyer, he said no, a lawyer's-clerk, and then he was produced as a with ness.

Court. Did you see the oath administered to him? - Yes I did; before he was asked any questions he was sworn.

Mr. James. What part of the Court was I in? - On the left hand as they went into Court.

Court. You say you heard the Counsellor ask Mr. James < no role > the defendant whether Mr. George was an insolvent man, and whether he had made a composition with his creditors, and Mr. James said he had not, but had paid all his creditors twenty shillings in the pound, or at least Mr. Dublois had paid it for him; was he asked the two questions together or did he answer the one first, and then the other? - One followed the other as fast as he could ask them; he answered he had not, he had made no composition at all.

That was all you recollect he said? - Yes.

THOMAS HOLMES < no role > sworn.

( Examined by Mr. Sylvester.)

Was you at Guildhall the sittings after last, term when the cause of Richard George < no role > and William Wells < no role > was tried? - I was, I was subpoened as a witness, I rememeber Mr. James there, I remember Mr. Wells's Council stated to the Court that Mr. George was insolvent, and Mr. James said he was not.

Do you remember his being sworn? - Yes Sir.

Was he sworn before he was asked any questions? - Upon my word I cannot say whether it was before or after, I remember his being sworn.

Which side produced Mr. James as a witness? - He was a witness for Mr. George; the Council asked Mr. James if Mr. George was insolvent, he said he was not, and had never made any composition, he had paid every one their full money, twenty shillings in the pound, at least Mr. Dublois did for him.

Court. In answer to the question, whether he had made any composition with his creditors, repeat as distinctly as you can what he said, and all that he said? - He said he had not made a composition, he had paid every one his full money, twenty shillings in the pound, at least a Mr. Dublois did for him.

Mr. Fielding, Defendant's Council. Master Holmes, you say that Mr. Wells's Council was stating to the Court that Mr. George was insolvent, upon which up started Mr. James, and said he was not, and then came the question, Is that so? the Council was going on, as my learned friend Mr. Sylvester very often does, stating that which will not be proved, and Mr. James got up and said to the Court, he is not insolvent; is that it.

Mr. Sylvester. Was he examining then upon oath? - I saw him sworn, but whether he was sworn then or not I cannot say.

Court. The words assigned as perjury are,

"That he never made any composition " with his creditors, but had paid

"them the full money, twenty shillings

"in the pound."

MARY HOLMES < no role > sworn.

Examined by Mr. Sylvester.

Do you remember Mr. James being at Guildhall? - I do.

Do you remember whether he was sworn or not? - Yes he was.

What happened after he was sworn? - Mr. Wells's Council said Mr. George was insolvent, and Mr. James started up and said he was not insolvent, then the Council said he made a composition with his creditors, and he said he never made any composition with his creditors

Court. Was he sworn before he said so? - Yes.

Mr. Fielding. Do you remember the words,

"at least Mr. Dublois did for him?" - Yes.

Then he gave the Court to understand that Mr. Dublois had actually settled with his creditors? - Yes.

BLOIS DU BLOIS sworn.

Examined by Mr. Sylvester.

Do you remember Richard George < no role > ? - Yes.

Do you know Mr. James? - I have seen him once or twice, I have no acquaintance with him, there was a meeting of the creditors, I did not attend them, I believe George was in very low circumstances, he was obliged to make an assignment of his effects.

Has any composition been made? - There was a composition of eight shillings in the pound, which I paid amongst the principal part of his creditors, but I do not know that any of them were paid their whole debts except one man who arrested him.

Who was his attorney then? - Mr. James < no role > I believe, he attended with him several times in order to make up his affairs.

Mr. Fielding. You had some opinion of George yourself? - Certainly.

And you paid the composition? - Yes.

Mr. Sylvester. In the account did Mr. George include the sixteen pounds due to him from Wells? - I never saw his name in my list.

Mr. Fielding. Have you got the assignment here? - I have not, it is with Mr. Barnard < no role > the attorney, I thought I had it, I am glad I had not, if I had, I should have lost it as I was burnt out.

Court. Was Mr. James privy to this settlement? - He attended several times to get the assignment, and afterwards he attended with me for Mr. Barnard.

Did he know there was a composition of eight shillings in the pound, or any other composition made with George's creditors? - Mr. James came with George to me, and George told me how his affairs were, that he wished to make an assignment of his effects; James came along with him then.

Court. Did George say any thing in the presence or hearing of James about making a composition; for an assignment and a composition are two very different things; an assignment of effects may produce twenty shillings in the pound, a composition is an agreement for debts: does it therefore appear from any fact that Mr. James knew that George had made a composition with his creditors, do you know whether Mr. James knew of a composition of eight shillings in the pound? - I have every reason to believe that Mr. James was privy to the composition, because he attended with Mr. George for that purpose.

For what purpose? - For making the assignment.

Aye, that is the thing I mention? - The composition was mentioned in the assignment.

Court. We must see the assignment, you say George paid one creditor twenty shillings in the pound? - I believe he did.

Did Mr. James know it?

Mr. James. I was concerned in it? - I cannot tell, I only suppose he did by being Mr. George's attorney.

Mr. Fielding. (A paper shewn him.) Is that your hand writing Mr. Dublois? - Yes.

TIMOTHY FISHER < no role > sworn.

What are you? - A linen-draper at Holborn Bridge.

Do you know George? - Yes, he was an upholsterer in 1781, he owed memoney, it was about October, we met at the Half-moon Tavern, before which it was agreed we should take eight shillings in the pound, I received two notes for the eight shillings, I never received more; I have seen Mr. James, I have no acquaintance with him.

Was he at the meeting at the Half-moon Tavern? - I believe he was.

Did you see him after that? - I cannot say; I have seen him within this month, for he has called upon me merely to ask me concerning this matter.

Mr. Fielding. Do you know Mr. Wells? - No.

Mr. George was an upholsterer was not he? - Yes.

Do you recollect with certainty, whether Mr. James was at that meeting or not? - I believe he was the person that was to settle the matter, I think he was there, but I cannot be sure.

HENRY LADYMAN < no role > sworn.

I was one of the creditors of Mr. George, we met at the Half Moon.

Was Mr. James present? - I really do not recollect, but I think he was, I did not charge my memory.

What was the composition to be? - Eight shillings in the pound.

Did you ever receive more than that? - No, never.

What year was this in? - One thousand seven hundred and eighty-one.

Court. You have not fully explained to me, in what manner this evidence of Mr. James was material to the cause that was trying in George against Wells.

Mr. Sylvester. George looked upon this not to be a debt due to him, and therefore he had no right to say it, there was a note of Wells's to George of twenty pounds, which he had been defrauded of, that was not standing against Wells; George agrees this sixteen pounds, which Wells owed him, should remain in his hands.

Court. That remained in his hands equally whether George had made a composition or not.

Mr. Baldwin. I was in Court, my Lord Mansfield said it was not material.

- BALDWIN Esq < no role > ; sworn.

I only wish to inform the Court how the cause stood, this was an action brought by George against Wells, to recover a sum of money due to him for a debt in trade, sometime before this George had applied to Wells, telling him he could get cash on his note, he had indulged him with a note of his, though I believe the debt was not then due; George put this note into the hands of some Jews, he never could get any thing for his note, which Wells had given him; the note got amongst many others into the hands of Sharp, an action was brought against Wells by Sharp, Mr. George took up the defence and said he would defend that suit; this man in defending this action expended about the sum of ninety pounds; Sharp did not succed in his causes, of course Sharp got non-prossed; the note is now in the hands of Mr. Welch, attorney, concerned for Sharp; now George says to Wells, it is time you should pay me your debt; you never will be called upon; Sharp has ran away; I have expended ninety pounds in defending it: now whether George had made a composition or not, it had nothing at all to do with it; this was rather a conversation that passed between Sharp and James, who foolishly enough entered into conversation on the subject.

Mr. Sylvester. Was not Mr. James < no role > a witness? - I do not know; he stood by; it is very likely he was.

Mr. Sylvester. Lord Mansfield's words were these; can either of you swear there is no such transaction? - I do not remember that.

Mr. Fielding. My Lord Mansfield said it has nothing at all to do with the case.

Court. I will tell you on each side, how far I conceive it is material in trials of this kind, the ground on which I conceive it to be material and necessary, that the point on which the perjury is assigned, should be material to the point in issue in the cause; for it goes to the question of the perjury being wilful and corrupt, for it is not to be presumed that a man would incur the guilt and penalties of perjury for that which could have no benefit, and for which he could have no motive: it should be in some degree more or less material to the point in question, if I am right in that view of considering it, it is not necessary that the fact given in evidence should be really and truly material to the question, but such a fact as might appear to the witness to be material to the question at the time.

Mr. Fielding. Here they have laid it as an averment, that this is material to that point, therefore the materiality is a fact necessary to be established: the indictment says, it became a material question, whether the said George was ever insolvent or ever made any composition with his creditors, or whether the said creditors had ever been paid their full debts.

Court. They must support that part, supposing it is considered in this point of view, whether it may not be considered as material to the defence meant to be set up; that he had got a consent and permission to retain that debt as an indemnity for him, against that outstanding note; that was the general short nature of the defence intended to be set up; then was it not material to shew that he was in insolvent circumstances, and that therefore the defendant could have no other indemnity that would be satisfactory to him.

Court to Mr. Sylvester. We have at present no evidence of the defence that was opened on the question that was tried, all that is admitted is, that a cause was tried between George and Wells.

Mr. Sylvester. We will now call William Wells < no role > .

Mr. Fielding. He cannot be a witness for there is no final judgment signed.

Court. No; and if it was a point material he would be entitled to a new trial; if this is material the effect of it will be a new trial; if not, the defendant cannot be convicted.

ANN WELLS < no role > sworn.

Examined by Mr. Sylvester.

Was you present in Court when the cause was tried between George and Wells?

Yes, I heard Counsellor Power < no role > say George was insolvent; Mr. James said he was not; he made no composition; he paid all his creditors their full money; twenty shillings in the pound; or, at least, Mr. Dublois paid it for him; I recollect that Counsellor Power < no role > said, how do you know that, and Mr. James said, because I have been concerned in the business all through.

Court. What was the defence that Counsellor Power < no role > set up for Mr. Wells? - I do not recollect exactly; I have a notion it was, that he had given this note to indemnify him; I recollect now, it was this, that he was liable still to this note; upon which Mr. Welch, who was in Court, said he had the note, but it was good for nothing: Lord Mansfield asked Mr. Welch to give up the note; he said, he did not think himself justified in doing it.

Mr. Baldwin. I believe the cause was over; my Lord Mansfield had decided in his own mind; the Jury had not found a verdict.

Mr. Sylvester to Ann Wells < no role > . Do not you recollect the defence was, that he could have no other securities, George being an insolvent man? - I cannot recollect; Mr. Welch is the proper person to give you that, he knew what defence he meant to set up.

Court to Prosecutor. Have you any farther evidence? - No, only Mr. Wells the defendant in that cause.

Court. Certainly not.

Mr. Fielding. Gentlemen of the Jury, I am to solicit your attention to the case of the defendant, Mr. James, who now stands before you, and I trust you will give me credit when I assert, that if I stood up as the advocate for a man who I thought had been guilty of perjury, I should feel myself extremely awkward, and extremely embarrassed in offering any sort of apology for that crime; but I do promise you, that I feel myself in a very different situation here, I feel myself addressing you on the part of a man who has been extremely improperly indeed brought before you, under the weight of an accusation which reflects as little credit on Mr. Wells as a matter can well do. The parties who were concerned at first, Mr. Wells and Mr. George, they had some transactions together, and Mr. Wells was indebted to Mr. George in a sum of money, and George desired Wells to give him a note which he would get discounted if possible; he parted with it, and he could get no money for it, therefore the note was outstanding; in this situation he applies to Wells, tells him the manner in which this note had been got possession of, and concludes he will hear of it; but says he, do not pay it; I will take upon myself all the expence that shall be incurred, therefore, I will now give you this indemnity against all the eventual expence of that business; he gives him therefore two notes, one of sixteen pounds, to remain in his custody as an indemnification: the note is afterwards put in suit by a Mr. Sharp; the action is defended; Mr. George himself is at the expence of all this; Sharp absconds, a non pross is signed, and there is an end of that action; Mr. Wells during this time had not been a shilling out of pocket, not a sixpence, and therefore the notes ought to have been returned; but after this there was a bill due, for the first note that Wells had given to George being good for nothing, that could not be taken as a payment for the goods; Wells stood indebted to George, therefore George says to him, deliver up my note and pay me; he held him at arms length, which obliged George to bring an action; upon this action Wells pleads a sett-off, and gives in evidence these two notes, given to him merely to answer the purpose of indemnification; but it so happened, that at the very time Mr. George gave these two notes to Wells for an indemnification, Wells gave him a memorandum, and that memorandum we are in possession of; so that the question of composition, of solvency, or insolvency, were perfectly immaterial in that question; and being defeated in this, corrupt as it was in Wells, to think of setting of any thing like these notes, you are not at all surprized at this matter being followed up with all the animosity and vindictiveness that could possibly be ingrafted on such a cause; Mr. James had some solicitude about his client, he had no motive, he had no interest, he merely stood up by way of conversation between him and Mr. Bower; Mr. Bower asserted, that he had made a composition, although that was perfectly immaterial to the business, but Council very frequently state things which are perfectly immaterial; Mr. Bower says, did not he make a composition? No, says he, or if he did, Mr. Dublois made it for him; the very answer goes to this, that he could not say there was no composition, because he acknowledged there had been one, for that Mr. Dublois had made one; Dublois knew nothing of James, therefore, if George had intrusted Mr. James to settle for him to a certain amount, Mr. James might very well say that in Court; Lord Mansfield would not hear James; but the conversation between Mr. James and Mr. Bower was perfectly immaterial: now they have averred that this was a material matter before the Court, and they have not proved it. As for Mr. James < no role > the defendant, he has gone through life with unimpeached integrity, and it would not therefore be sufficient for me to close with mentioning any defect in their evidence, without submitting the case to you; you have heard Mr. Baldwin, and it seems a little singular, that the two first witnesses, one of which is Mrs. Wells, a relation, should be brought here to bolster up a cause like this; the manner in which she has given her testimony, the affectation as to her memory of what I am sure no one of you would have affected to remember -

Court. I do not think Mr. Fielding that you stand in a situation that I ought to allow you to throw any imputation on the witnesses.

Mr. Wells, Attorney for the Prosecution. I assure your Lordship there was nothing malicious in the prosecution.

Court. I am sure if you was concerned in it, Mr. Wells, there was not.

Court to Jury. Gentlemen, being of opinion, that in point of law it is material for the prosecutor of this indictment to prove this that was alledged in the indictment, which is, that the facts that were the subject of this indictment were material to the cause upon the trial on which this perjury was supposed to be committed; but the prosecutor, upon whom it is incumbent, not being able to prove in a distinct or clear manner what the question in that cause so tried really was, I am of opinion, that in point of law, they fail in proof of material allegation, which it is necessary for them to prove; therefore I shall abstain from giving any opinion whatever on the merits of the case.

NOT GUILTY .

Tried by the London Jury before Mr. RECORDER.